Division 2_NOV2024PC0386_Response_SIGNED.pdf

Roy COOPER
GOVERNOR
STATE .
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STATE OF NORTH CAROLINA
DEPARTMENT OF TRANSPORTATION
July 3, 2024
NC Division of Water Resources
Transportation Permitting Branch
1617 Mail Service Center
Raleigh NC 27699-1617
ATTN: Ms. Amy Chapman, Supervisor
Transportation Permitting Branch
Subject: NCDOT Response to Notice of Violation
Reference: NCDWR NOV-2024-PC-0386 Dated June 13, 2024
NCDWR Project No. 20201194
USACE Action ID SA W-2018-01012
J.R. "JOEY" HOPMNS
SECRETARY
NCDOT TIP U-5713/R-5777A&B US 70 Improvements in James City,
Craven County
Dear Ms. Chapman,
This letter is in response to the North Carolina Division of Water Resources (NCDWR)
Notice of Violation (NOV-2024-PC-0386) issued on June 13, 2024, for unauthorized fill
in a jurisdictional stream on project U-5713/R-5777A&B, US 70 Improvements in James
City, in Craven County. Included are the requested responses addressing items from your
letter as well as a letter from our prime contractor for the same.
NCDWR NOV-2024-PC-0386
As requested, responses to the questions in your June 13, 2024, letter are as followed:
• Please explain how the violation occurred.
Mailing Address: Telephone: [phone] Location:
NC DEPARTMENT OF TRANSPORTATION Fax: [phone] ROUSE ROAD EXTENSION
DIVISION 2 Customer service: 1-877-368-4968 KINSTON, NC 28504
2815 ROUSE ROAD EXTENSION
KINSTON, NC 28504 Website: www.ncdot.gov

As indicated in your letter, an onsite inspection of the project was held on June 4, 2024,
by Mr. Garcy Ward with NCDOT and contractor staff in attendance. When the
unauthorized fill was discovered during the inspection, discussions were held among the
three parties as to how and why the earthen material had been pushed into stream SJ at
Site 18 near Culvert 5. At the time of those discussions, it was speculated and reported to
Mr. Ward that it had to have happened during the retrieval of an excavator that had
overturned at the culvert on May 31. These statements were made as speculation by the
staff that was present at the inspection without inquiring from their staff performing the
culvert excavation or the subcontractor hired to build the culvert.
Immediately following the conclusion of the June 4 inspection and discovery of the
unauthorized fill, NCDOT and Balfour Beatty started an investigation and began
interviewing staff that had been present at the culvert in the days leading up to the
inspection. We have concluded that the violation actually occurred during culvert
wingwall excavation sometime between noon on Monday, June 3, and noon on Tuesday,
June 4. This conclusion has been made based on the photographs taken by our project
inspection staff on May 30, June 3, and the morning of June 4 as well as numerous
conversations with our inspection staff and the contractor. The exact day and time are
still not known, as it was not realized that the unauthorized fill (spoil pile) had spilled
into the jurisdictional stream until Mr. Ward's inspection.
Site 18 was permitted for buffer, wetland, and stream impacts. The highlighted location
on the plan snippet on the next page shows where the unauthorized fill exceeded our
permitted footprint and encroached into 20' of jurisdictional stream (permit label SJ)
located between two sections of jurisdictional stream that had been permitted for impacts.

Our investigation further revealed that the unauthorized fill was placed while a stockpile
of earthen material was being generated during excavation for the culvert wingwalls. The
stockpile was placed within the area that had been permitted, but due to the size began
encroaching into the 20 linear feet of stream between the two permitted sites (highlighted
in drawing above), which had not been permitted for temporary impacts. At the time the
material exceeded our permitted footprint, this perennial stream had no water in it and
due to the vantage point of the excavator operator, it could have been unclear to him as to
the small area of jurisdictional stream not being permitted for impacts.

• Please explain why the violation was not reported to DWR within 24 hrs.
As stated above, it was originally speculated that the violation occurred on May 31
during retrieval of an over -turned excavator. Our thorough investigation has revealed
that the violation most likely occurred between noon on June 3 and noon on June 4
during wingwall excavation based on project notes, photographs, and interviews. The
unauthorized fill was discovered on the afternoon of June 4 during Mr. Ward's onsite
investigation. While the project staff had not realized the material had encroached into
the unpermitted 20-foot section of the stream until the onsite inspection, the 24-hour
timeframe to report the violation had not been exceeded based on our investigation. We
do understand that based on the speculative information provided to Mr. Ward at the
onsite inspection, we would have exceeded the 24-hour timeframe to report.

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List any actions necessary to remediate the violation and prevent it from
happening again.
Upon conclusion of Mr. Ward's onsite inspection, the contractor began retrieving the
material that had encroached into the unpermitted area and repaired the adjoining area to
bring it back into compliance, as shown in the two photos below. The contractor worked
into the evening on June 4 and continued early the next morning.

removing the stockpiled
restoring t�e,2Q" of iim
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The contractor had a project -wide "stand -down" with their staff to discuss this incident
and the lessons learned. The same was held with the Department's project inspection
staff. The contractor has committed to having meetings with their subcontractors to
ensure all are aware of the permitted versus non -permitted areas on the project to
eliminate any possibility of encroaching into a non -permitted area again. Ensuring this
and other areas are clearly marked for jurisdictional features, permitted or not, is the best
way to ensure this does not happen again. For Site 18, additional high visibility fencing
has been added, as shown in photo above, to clearly designate to not enter the stream
where it is not permitted for impacts.
The NCDOT and contractor are reviewing all other permit sites on the project to get
refreshed with them since there has been a substantial amount of time between when the
permits were received and the beginning of construction. There have been lessons learned
regarding high visibility fence placement at sensitive areas that are unusual in nature and
its purpose to provide awareness to someone where they can and cannot work. While
high visibility fence had been installed at Site 18 prior to work commencing, it had not
been installed correctly to delineate the stream, buffer, and wetland impacts at this
location; therefore, leaving the 20-foot of unpermitted stream impact without delineation.
This oversight had not been realized by any of the parties during previous monthly
agency review meetings. This has since been corrected and high visibility fence has been
installed at Site 18 per the drawings below.

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Furthermore, NCDOT site personnel and construction staff have been reminded of the
need to do a 360-degree walk around at all jurisdictional sites at a minimum of the
beginning and end of each day. Additionally, as required in the Water Quality
Certification (WQC), a copy of the WQC will be onsite at all times.
We are committed to revisiting and reviewing all permitted sites prior to beginning new
work with the contractor and each subcontractor. We have had multiple meetings and
discussions on this subject, to ensure all parties understand the seriousness of this

incident and the repercussions. The contractor is taking additional measures with their
staff to ensure they understand the requirements of the permit and what orange fence
represents, as well as reviewing their work sites on a routine basis including but not
limited to ensuring orange fence is always maintained. You will find additional
information regarding their approach succeeding this response.
The Department and its contractor truly regret this incident occurred and understand the
shortcomings on our part with the events leading up to the violation. Please know that we
take these actions very seriously, and efforts will be made to ensure such deficiencies do
not occur again.
We would ask that the North Carolina Division of Water Resources (NCDWR) give
consideration to rescinding this Notice of Violation based on the new information that we
are presenting based on a thorough investigation that was held by the Department and the
contractor following the discovery of the unauthorized fill; information that is contrary to
the speculative information provided to Mr. Ward during his inspection. Should you
have any questions regarding any of this information, please contact Jordan Scott at 252-
439-2847 or jcscottl e,ncdot.gov or myself at 252-775-6100 or jdstroud@a ncdot.gov
Sincerely,
.�eremyyroud, PE
Division Two Engineer
CC: Gary Ward, DEMLR, Washington Regional Office
Tom Steffens, US Army Corps of Engineers, Washington Field Office
Stephen Lane, NC Division of Coastal Management
Cadmus Capehart, PE, NCDOT Division 2 Deputy Engineer
Jordan Scott, PE, NCDOT Division 2 Construction Engineer
Troy Brooks, PE, NCDOT State Construction Engineer
Jay Johnson, NCDOT, Division 2 Environmental Officer
Wendi Johnson, PE, Gannett Flemming
Chris Rivenbark, RK&K
Jay Boyd, Balfour Beatty